Copyright © 2007, American Immigration Lawyers Association. Reprinted, with permission, which will appear in Immigration
Options for Artists and Entertainers, available from AILA Publications, 1-800-982-2839, www.ailapubs.org.
“LET ME IN, COACH”: TEMPORARY WORK VISAS NOW AVAILABLE FOR
AMATEUR ATHLETES AND COACHES
by Andrew J. Stevenson and Bernard P. Wolfsdorf ∗
In the summer of 1993, Craig Muni, a veteran
National Hockey League (NHL) defenseman, filed
for an employment-based immigrant visa to the
United States as an individual of “extraordinary ability” in athletics. 1 To prove he was “extraordinary,”
Muni’s lawyers submitted evidence that he had more
than 10 years of experience in the NHL; had contributed to three Stanley Cup victories playing for
the Edmonton Oilers; had one of the best plus-minus
ratios in the league; had a reputation among other
players, sportswriters, and fans as an excellent
defenseman; and more. Yet Muni’s visa petition was
denied, the denial was affirmed on appeal, and he
was left to scratch his head in disbelief in the locker
room. How could a sports star of his caliber, a key
player on a world championship team, and the subject of articles in major sports magazines not receive
a visa reserved for top athletes in the United States?
If he didn’t qualify, who would?
Service’s (INS) “grudging interpretation” that “apparently … only all-stars or the League’s highestpaid players have extraordinary ability.” 2 Yet
Muni’s case reflected a stingy attitude in immigration policy toward foreign athletes, discouraging
rather than encouraging their participation in U.S.
sports leagues. Similar to the strict definitions in
immigrant visa applications for athletes, U.S. immigration authorities restricted the nonimmigrant P-1
and O-1 visas to “internationally recognized” 3 or
“extraordinary ability” 4 athletes. This left no hope
for amateur or minor league athletes. Likewise, very
few coaches were able to qualify under this rigorous
standard.
Fortunately, on December 9, 2006, Congress
passed the Creating Opportunities for Minor League
Professionals, Entertainers, and Teams through Legal Entry Act (COMPETE Act), 5 allowing certain
amateur and semi-professional athletes and coaches
to qualify for temporary work visas. As a result, international amateur and minor league athletes and
coaches will be eligible to participate and compete
in sports in the United States. Although applicants
still will need to be sponsored by the team that employs them or by the league or association in which
they compete, they are no longer required to be regionally, nationally, or internationally “recognized”
for their ability.
Ultimately, a federal judge in the Northern District of Illinois reversed the denial of Muni’s visa,
scolding the legacy Immigration and Naturalization
∗
Copyright © 2006 Bernard P. Wolfsdorf P.L.C. All rights
reserved.
Andrew J. Stevenson is an associate in the Wolfsdorf Immigration Law Group, LLP, a firm with offices in Santa
Monica and New York City. He practices exclusively in the
area of immigration and nationality law, and received the
American Immigration Law Foundation’s Edward L.
Dubroff Award for excellence in scholarly writing. Mr. Stevenson is a member of the state bar of California and the Los
Angeles County Bar Association. He can be reached at AStevenson@Wolfsdorf.com.
Bernard P. Wolfsdorf is currently the second vice president
of the American Immigration Lawyers Association (AILA).
He is a partner in the Wolfsdorf Immigration Law Group,
LLP. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell’s preeminent specialist directory. Chambers Global: The
World’s Leading Lawyers for Business noted Mr.
Wolfsdorf’s “outstanding consular law practice” and called
him a “cutting-edge thinker.” Mr. Wolfsdorf has written
extensively on consular processing and frequently speaks on
the topic. He can be contacted at Bernard@Wolfsdorf.com.
1
See Immigration and Nationality Act (INA) §203(b)(1)(A);
8 CFR §204.5(h).
The new provisions represent a giant leap forward and remove numerous hurdles that have presented considerable bars to promising amateur and
semi-professional athletes wishing to perform or
compete in this sports-loving nation. Congress has
taken a bold step forward in expanding the categories that allow athletes and coaches to compete with
American sportspersons and has effectively leveled
2
Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995).
See INA §214(c)(4)(A); 8 CFR §214.2(p)(4)(ii)(B).
4
See INA §101(a)(15)(O)(i); 8 CFR §214.2(o)(3)(iii).
5
Creating Opportunities for Minor League Professionals,
Entertainers, and Teams through Legal Entry Act, Pub. L.
No. 109-463, 109th Cong. (2006) (amending INA
§214(c)(4)(A)).
3
29
30
IMMIGRATION OPTIONS FOR ARTISTS AND ENTERTAINERS
the playing field to provide opportunities for qualified athletes sponsored by U.S. teams or leagues.
team that is affiliated with such an association”
qualifies. 8
FROM “INTERNATIONAL RECOGNITION”
TO LEAGUE/ASSOCIATION
REQUIREMENTS
Previously, international recognition was the
only way for athletes, teams, and support staff to
receive P-1 status. Under the new COMPETE Act,
there are four qualifying categories, each of which is
sufficient to justify granting P-1 status. Only one
category retains the “international recognition” standard. Two others allow athletes or coaches to qualify
based on criteria related to the league or association
with which they are affiliated. The last category
makes P-1 visa status available to professional or
amateur athletes performing in a “theatrical ice skating production.” 6
The most important new visa opportunities for
international amateur athletes and coaches exist in
the new “league or association” categories. These
categories exempt athletes and coaches from proving
any significant benchmark of achievement or recognition and remove these difficult hurdles for up-andcoming sports professionals. Athletes and coaches
may instead merely submit a contract of employment with a qualifying team or franchise to qualify.
This takes the burden off the athlete and coach and
makes the application process more straightforward.
ELIGIBILITY CRITERIA FOR AMATEUR
ATHLETES AND COACHES
Athletes employed by teams in major
professional sports associations or minor
league affiliates
The first new P-1 category tracks the existing
“professional athlete” standard. Athletes qualify as
“professional” if they are employed by “a team that
is a member of an association of 6 or more professional sports teams whose total combined revenues
exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the
contests and exhibitions in which its member teams
regularly engage.” 7 In addition, “any minor league
This category makes P-1 visas available to athletes from minor league baseball and junior league
hockey teams affiliated with a Major League Baseball or NHL team, as well as many soccer players. It
also appears to qualify athletes employed by clubs or
teams worldwide in other sports, provided the league
or association in which their team is a member or
with which it is affiliated meets the requirements,
including having at least six professional teams with
total combined revenue greater than $10 million, and
a governance and regulation structure for sports
competition.
This provision appears to open doors for international athletes employed by teams in large commercial sports leagues worldwide.
Athletes or coaches employed by a team or
franchise that is located in the United States
and that is a member of a qualifying foreign
amateur league or association
The second new P-1 category allows athletes or
coaches to be employed by U.S. amateur teams.
There is no requirement for the amateur U.S. team to
be affiliated with any major professional sports
team. However, the petitioning U.S. teams must be
part of foreign leagues and compete at a “high” amateur level.
To qualify, the team or franchise for which the
sportsperson will perform as an athlete or coach
must be “located in the United States and [be] a
member of a foreign league or association of 15 or
more amateur sports teams.” 9 Several qualifications
apply to the foreign league or association:
ƒ It must represent “the highest level of amateur
performance of that sport in the relevant foreign
country;” 10
ƒ Participation in it must render players “ineligible
… to earn a scholarship in, or participate in, that
sport at a college or university in the United
States under the rules of the National Collegiate
Athletic Association [NCAA];” 11 and
ƒ A “significant number” of the individuals who
play in it must be “drafted by a major sports
8
Id.
Pub. L. No. 109-463, supra note 5, at §2(a)(i)(III).
10
Id. at §2(a)(i)(III)(aa).
11
Id. at §2(a)(i)(III)(bb).
9
6
7
Pub. L. No. 109-463, supra note 5, at §2(a)(i)(IV).
INA §204(i)(2).
TEMPORARY WORK VISAS NOW AVAILABLE FOR AMATEUR ATHLETES AND COACHES
31
league or a minor league affiliate of such a sports
league.” 12
vidual athletes (and most likely coaches) can receive
valid status for up to five years. 14
It is difficult to determine exactly which foreign
leagues and associations qualify according to these
standards without careful, case-specific review. It
appears that sportspeople will need to meet a certain
profile to qualify under this category. Such athletes
or coaches will need a job offer from a team in the
United States that is affiliated with a foreign network of sports competition. The sport in question
must have sufficient exposure outside the United
States for it to be in a foreign league or association
of at least 15 teams, and it must have sufficient exposure within the United States to be an NCAAregulated sport. Finally, the foreign league with
which the U.S. team or franchise is affiliated must
be a source for drafting players into professional or
amateur clubs of a “major sports league.”
The admission of amateur coaches to work for
U.S. teams with foreign affiliations appears clear, as
coaches are expressly mentioned as beneficiaries. It
is not clear, however, whether coaches will qualify
under the professional sports team category. Existing regulations allow “essential support aliens” 15 to
receive P-1 status when applying together with
qualifying athletes. 16 Coaches are likely to qualify
under the “essential support” definition as “perform[ing] support services … which are essential to
the successful performance of services by the P-1
[athlete],” 17 and could thus be admitted in this capacity.
OTHER CONSIDERATIONS:
TEAM APPLICATIONS AND COACH
APPLICATIONS AS “ESSENTIAL SUPPORT”
WORKERS
There are several potentially viable strategies that
may be applicable to facilitate the admission of amateur athletes and coaches. Since P-1 petitions need
not be filed individually on behalf of each amateur
athlete or coach, and the focus is now on team qualifications, these applications could likely be filed in
groups, based on team affiliation. Also, while
coaches are only specifically mentioned in one of
the new P-1 categories, regulations will allow for
their admission under all the new categories when
they accompany qualifying athletes.
The COMPETE Act authorizes multiple amateur
athletes or coaches to apply for status as part of a
single P-1 petition. 13 Accordingly, many individuals
who are employed by a team that meets new P-1
criteria should be able to apply simultaneously. Each
group’s petition could simply submit evidence that
their team either fits into the professional sports
team category or is affiliated with a foreign league,
and each individual in the group has an employment
contract with the team. P-1 status for teams can only
be approved in one-year increments, whereas indi-
12
13
Id. at §2(a)(i)(III)(cc).
Id. at §2(c).
The new law likely will not change filing procedures for these petitions. 18 Regulations require a
U.S. sponsor—either the American employer or
sponsoring organization, or a U.S. manager or
agent—to file petitions on behalf of P-1 applicants. 19
Foreign employers may not directly petition for an
applicant but must use a U.S. agent. 20 Since the new
categories grant status to international athletes and
coaches with no team affiliation in the United States,
the necessity of working through a U.S. manager or
agent is important. Advisory opinions from sports
labor organizations confirming that the sportsperson
meets the requirements are also mandatory. 21
14
See 8 CFR §214.2(p)(8)(iii)(A).
8 CFR §214.2(p)(3).
16
See 8 CFR §214.2(p)(4)(iv).
17
8 CFR §214.2(p)(3).
18
On December 28, 2006, U.S. Citizenship and Immigration
Services (USCIS) issued a policy memo recognizing the
passage of the COMPETE Act and stating that it would issue
revised regulations to facilitate implementation of new P-1
categories. USCIS Interoffice Memorandum, M. Aytes,
“Creating Opportunities for Minor League Professional [sic],
Entertainers, and Teams through Legal Entry Act of 2006
(COMPETE Act of 2006)—Admission as P-1 Nonimmigrant” (Dec. 28, 2006), published on AILA InfoNet at Doc.
No. 07010865 (posted Jan. 8, 2007).
19
8 CFR §214.2(p)(2)(i).
20
Id.
21
See 8 CFR §214.2(p)(7).
15